* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40826

(Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

versus

DONALD LARAY FAGAN, 

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Texas

(5-95-CR-8-1)

July 18, 1996

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges. 

PER CURIAM:*

Defendant-Appellant Donald Laray Fagan entered a plea of

guilty to carjacking, aiding and abetting, and use of or carrying

a firearm during a crime of violence, in violation of 18 U.S.C.

§§ 2, 924(c)(1), and 2119, for which he was sentenced to 420 months

of imprisonment. On appeal, Fagan complains of purported

sentencing errors regarding (1) a six-level upward adjustment to
2

his offense level based on permanent or life-threatening injury,

pursuant to U.S.S.G. § 2B3.1(b)(3)(C); (2) a four-level upward

adjustment for abduction, pursuant to U.S.S.G. § 2B3.1(b)(4)(A);

(3) an upward departure from the guidelines range based on

(a) extreme conduct, pursuant to § 5K2.8, (b) multiple firearms

pursuant to § 5K2.0, and (c) inadequacy of criminal history

category pursuant to § 4A1.3; and (4) a denial of reduction in

offense level for acceptance of responsibility. For the reasons

set forth in United States v. Hawkins, No. 95-40828, 1996 WL 361330

(5th Cir. Jun. 28, 1996), and for the additional reasons, peculiar

to Fagan, set forth below, we affirm his sentence. 

Our opinion in Hawkins presents the details of the criminal

conduct of a group of co-defendants of which Fagan was a member,

and sets forth our reasoning for affirming the same kinds of

adjustments in offense level and the same kind of upward departure

of which Fagan here complains. We incorporate by reference that

reasoning, and affirm those aspects of Fagan’s sentencing that are

essentially indistinguishable from those we affirmed in Hawkins.

Specifically, for the reasons set forth in Hawkins, we affirm the

six-level upward adjustment based on permanent or life-threatening

injury, the four-level upward adjustment based on abduction, and

the upward departure from the guidelines’ range based on extreme

conduct, multiple firearms, and inadequacy of criminal history

category for Fagan. That leaves only Fagan’s complaint regarding

acceptance of responsibility to be considered here. 

Fagan argues that, in denying the decrease in offense level
3

for acceptance of responsibility, the district court erred in

considering Fagan’s jail escape pending sentencing. He insists

that his plea of guilty conserved judicial resources and saved the

government the time and expense of going to trial, thereby

entitling him to reduction for acceptance of responsibility. Not

surprisingly, Fagan does not address the consumption of judicial

and governmental time and resources resulting from his escape. 

In reviewing the sentencing court’s acceptance of

responsibility determination for clear error, United States v.

Watkins, 911 F.2d 983, 984 (5th Cir. 1990), we afford that court

great deference. Section 3E1.1; see Watkins, 911 F.2d at 985. A

guilty plea does not, in and of itself, warrant a reduction for

acceptance of responsibility. United States v. Paden, 980 F.2d

1229, 1237 (5th Cir. 1990), cert. denied, 498 U.S. 1039 (1991).

The defendant bears the burden of proving entitlement to the

downward adjustment for acceptance. United States v. Kinder, 946

F.2d 362, 367 (5th Cir. 1991), cert. denied, 503 U.S. 987 and 504

U.S. 946 (1992). 

Fagan’s escape from custody before sentencing made him

eligible for an imposition of a two-point upward adjustment for

obstruction of justice under § 3C1.1; he did not, however, receive

such an adjustment. The guideline applicable to acceptance of

responsibility states that “[c]onduct resulting in an enhancement

under § 3C1.1 . . . ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct.” § 3E1.1

comment.(n.4). The guidelines clearly contemplate such an
4

interaction of these two provisions. 

In an almost identical case, which involved a defendant who

had attempted to escape from jail while awaiting sentencing on a

federal firearms charge, the Tenth Circuit held that the escape

attempt justified the district court’s denial of a reduction for

acceptance of responsibility. United States v. Amos, 984 F.2d

1067, 1973 (10th Cir. 1993). The Amos court stated that 

because the obstruction enhancement and acceptance of

responsibility reduction are intertwined, recognition of

the obstruction enhancement does provide grounds for the

denial of Defendant’s acceptance of responsibility

reduction. 

Id. at 1073. Given the district court’s finding that Fagan had

escaped and the deferential standard of review applied to findings

regarding acceptance of responsibility, we conclude that the

district court did not commit reversible error in determining that

Fagan was not entitled to such a reduction. 

For the foregoing reasons, and for the reasons set forth in

our opinion in Hawkins, the sentence imposed on Fagan by the

district court is, in all respects, 

AFFIRMED.